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Criminal Justice Bill


Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

90

 

Procedural requirements for imposing community sentences and discretionary custodial

sentences

128     

Pre-sentence reports and other requirements

(1)   

In forming any such opinion as is mentioned in section 120(1), (2)(b) or (3)(b),

section 124(2) or section 125(2), a court must take into account all such

5

information as is available to it about the circumstances of the offence or (as the

case may be) of the offence and the offence or offences associated with it,

including any aggravating or mitigating factors.

(2)   

In forming any such opinion as is mentioned in section 120(2)(a) or (3)(a), the

court may take into account any information about the offender which is before

10

it.

(3)   

Subject to subsection (4), a court must obtain and consider a pre-sentence

report before—

(a)   

in the case of a custodial sentence, forming any such opinion as is

mentioned in section 124(2), section 125(2), section 197(1)(b), section

15

198(1)(b), section 199(1)(b) or section 200(1)(b)(i), or

(b)   

in the case of a community sentence, forming any such opinion as is

mentioned in section 120(1), (2)(b) or (3)(b) or any opinion as to the

suitability for the offender of the particular requirement or

requirements to be imposed by the community order.

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(4)   

Subsection (3) does not apply if, in the circumstances of the case, the court is of

the opinion that it is unnecessary to obtain a pre-sentence report.

(5)   

In a case where the offender is aged under 18, the court must not form the

opinion mentioned in subsection (4) unless—

(a)   

there exists a previous pre-sentence report obtained in respect of the

25

offender, and

(b)   

the court has had regard to the information contained in that report, or,

if there is more than one such report, the most recent report.

(6)   

No custodial sentence or community sentence is invalidated by the failure of a

court to obtain and consider a pre-sentence report before forming an opinion

30

referred to in subsection (3), but any court on an appeal against such a

sentence—

(a)   

must, subject to subsection (7), obtain a pre-sentence report if none was

obtained by the court below, and

(b)   

must consider any such report obtained by it or by that court.

35

(7)   

Subsection (6)(a) does not apply if the court is of the opinion—

(a)   

that the court below was justified in forming an opinion that it was

unnecessary to obtain a pre-sentence report, or

(b)   

that, although the court below was not justified in forming that opinion,

in the circumstances of the case at the time it is before the court, it is

40

unnecessary to obtain a pre-sentence report.

(8)   

In a case where the offender is aged under 18, the court must not form the

opinion mentioned in subsection (7) unless—

(a)   

there exists a previous pre-sentence report obtained in respect of the

offender, and

45

(b)   

the court has had regard to the information contained in that report, or,

if there is more than one such report, the most recent report.

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

91

 

129     

Additional requirements in case of mentally disordered offender

(1)   

Subject to subsection (2), in any case where the offender is or appears to be

mentally disordered, the court must obtain and consider a medical report

before passing a custodial sentence other than one fixed by law.

(2)   

Subsection (1) does not apply if, in the circumstances of the case, the court is of

5

the opinion that it is unnecessary to obtain a medical report.

(3)   

Before passing a custodial sentence other than one fixed by law on an offender

who is or appears to be mentally disordered, a court must consider—

(a)   

any information before it which relates to his mental condition

(whether given in a medical report, a pre-sentence report or otherwise),

10

and

(b)   

the likely effect of such a sentence on that condition and on any

treatment which may be available for it.

(4)   

No custodial sentence which is passed in a case to which subsection (1) applies

is invalidated by the failure of a court to comply with that subsection, but any

15

court on an appeal against such a sentence—

(a)   

must obtain a medical report if none was obtained by the court below,

and

(b)   

must consider any such report obtained by it or by that court.

(5)   

In this section “mentally disordered”, in relation to any person, means

20

suffering from a mental disorder within the meaning of the Mental Health Act

1983 (c. 20).

(6)   

In this section “medical report” means a report as to an offender’s mental

condition made or submitted orally or in writing by a registered medical

practitioner who is approved for the purposes of section 12 of the Mental

25

Health Act 1983 (c. 20) by the Secretary of State as having special experience in

the diagnosis or treatment of mental disorder.

(7)   

Nothing in this section is to be taken to limit the generality of section 128.

130     

Meaning of “pre-sentence report”

(1)   

In this Part “pre-sentence report” means a report which—

30

(a)   

with a view to assisting the court in determining the most suitable

method of dealing with an offender, is made or submitted by an

appropriate officer, and

(b)   

contains information as to such matters, presented in such manner, as

may be prescribed by rules made by the Secretary of State.

35

(2)   

In subsection (1) “an appropriate officer” means—

(a)   

where the offender is aged 18 or over, an officer of a local probation

board, and

(b)   

where the offender is aged under 18, an officer of a local probation

board, a social worker of a local authority social services department or

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a member of a youth offending team.

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

92

 

Disclosure of pre-sentence reports etc

131     

Disclosure of pre-sentence reports

(1)   

This section applies where the court obtains a pre-sentence report, other than

a report given orally in open court.

(2)   

Subject to subsections (3) and (4), the court must give a copy of the report—

5

(a)   

to the offender or his counsel or solicitor,

(b)   

if the offender is aged under 18, to any parent or guardian of his who is

present in court, and

(c)   

to the prosecutor, that is to say, the person having the conduct of the

proceedings in respect of the offence.

10

(3)   

If the offender is aged under 18 and it appears to the court that the disclosure

to the offender or to any parent or guardian of his of any information contained

in the report would be likely to create a risk of significant harm to the offender,

a complete copy of the report need not be given to the offender or, as the case

may be, to that parent or guardian.

15

(4)   

If the prosecutor is not of a description prescribed by order made by the

Secretary of State, a copy of the report need not be given to the prosecutor if the

court considers that it would be inappropriate for him to be given it.

(5)   

No information obtained by virtue of subsection (2)(c) may be used or

disclosed otherwise than for the purpose of—

20

(a)   

determining whether representations as to matters contained in the

report need to be made to the court, or

(b)   

making such representations to the court.

(6)   

In relation to an offender aged under 18 for whom a local authority have

parental responsibility and who—

25

(a)   

is in their care, or

(b)   

is provided with accommodation by them in the exercise of any social

services functions,

   

references in this section to his parent or guardian are to be read as references

to that authority.

30

(7)   

In this section and section 132

   

“harm” has the same meaning as in section 31 of the Children Act 1989

(c. 41);

   

“local authority” and “parental responsibility” have the same meanings as

in that Act;

35

   

“social services functions”, in relation to a local authority, has the meaning

given by section 1A of the Local Authority Social Services Act 1970

(c. 42).

132     

Other reports of local probation boards and members of youth offending

teams

40

(1)   

This section applies where—

(a)   

a report by an officer of a local probation board or a member of a youth

offending team is made to any court (other than a youth court) with a

view to assisting the court in determining the most suitable method of

dealing with any person in respect of an offence, and

45

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

93

 

(b)   

the report is not a pre-sentence report.

(2)   

Subject to subsection (3), the court must give a copy of the report—

(a)   

to the offender or his counsel or solicitor, and

(b)   

if the offender is aged under 18, to any parent or guardian of his who is

present in court.

5

(3)   

If the offender is aged under 18 and it appears to the court that the disclosure

to the offender or to any parent or guardian of his of any information contained

in the report would be likely to create a risk of significant harm to the offender,

a complete copy of the report need not be given to the offender, or as the case

may be, to that parent or guardian.

10

(4)   

In relation to an offender aged under 18 for whom a local authority have

parental responsibility and who—

(a)   

is in their care, or

(b)   

is provided with accommodation by them in the exercise of any social

services functions,

15

   

references in this section to his parent or guardian are to be read as references

to that authority.

Pre-sentence drug testing

133     

Pre-sentence drug testing

(1)   

Where a person aged 14 or over is convicted of an offence and the court is

20

considering passing a community sentence or a suspended sentence, it may

make an order under subsection (2) for the purpose of ascertaining whether the

offender has any specified Class A drug in his body.

(2)   

The order requires the offender to provide, in accordance with the order,

samples of any description specified in the order.

25

(3)   

Where the offender has not attained the age of 17, the order must provide for

the samples to be provided in the presence of an appropriate adult.

(4)   

If it is proved to the satisfaction of the court that the offender has, without

reasonable excuse, failed to comply with the order it may impose on him a fine

of an amount not exceeding level 4.

30

(5)   

In subsection (4) “level 4” means the amount which, in relation to a fine for a

summary offence, is level 4 on the standard scale.

(6)   

The court may not make an order under subsection (2) unless it has been

notified by the Secretary of State that the power to make such orders is

exercisable by the court and the notice has not been withdrawn.

35

(7)   

The Secretary of State may by order amend subsection (1) by substituting for

the age for the time being specified there a different age specified in the order.

(8)   

In this section—

   

“appropriate adult”, in relation to a person under the age of 17, means—

(a)   

his parent or guardian or, if he is in the care of a local authority

40

or voluntary organisation, a person representing that authority

or organisation,

 

 

Criminal Justice Bill
Part 11 — Sentencing
Chapter 1 — General provisions about sentencing

94

 

(b)   

a social worker of a local authority social services department,

or

(c)   

if no person falling within paragraph (a) or (b) is available, any

responsible person aged 18 or over who is not a police officer or

a person employed by the police;

5

   

“specified Class A drug” has the same meaning as in Part 3 of the Criminal

Justice and Court Services Act 2000 (c. 43).

Fines

134     

Powers to order statement as to offender’s financial circumstances

(1)   

Where an individual has been convicted of an offence, the court may, before

10

sentencing him, make a financial circumstances order with respect to him.

(2)   

Where a magistrates’ court has been notified in accordance with section 12(4)

of the Magistrates’ Courts Act 1980 (c. 43) that an individual desires to plead

guilty without appearing before the court, the court may make a financial

circumstances order with respect to him.

15

(3)   

In this section “a financial circumstances order” means, in relation to any

individual, an order requiring him to give to the court, within such period as

may be specified in the order, such a statement of his financial circumstances

as the court may require.

(4)   

An individual who without reasonable excuse fails to comply with a financial

20

circumstances order is liable on summary conviction to a fine not exceeding

level 3 on the standard scale.

(5)   

If an individual, in furnishing any statement in pursuance of a financial

circumstances order—

(a)   

makes a statement which he knows to be false in a material particular,

25

(b)   

recklessly furnishes a statement which is false in a material particular,

or

(c)   

knowingly fails to disclose any material fact,

   

he is liable on summary conviction to a fine not exceeding level 4 on the

standard scale.

30

(6)   

Proceedings in respect of an offence under subsection (5) may,

notwithstanding anything in section 127(1) of the Magistrates’ Courts Act 1980

(c. 43) (limitation of time), be commenced at any time within two years from

the date of the commission of the offence or within six months from its first

discovery by the prosecutor, whichever period expires the earlier.

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135     

General power of Crown Court to fine offender convicted on indictment

Where a person is convicted on indictment of any offence, other than an offence

for which the sentence is fixed by law or falls to be imposed under section

110(2) or 111(2) of the Sentencing Act or under any of sections 197 to 200 of this

Act, the court, if not precluded from sentencing an offender by its exercise of

40

some other power, may impose a fine instead of or in addition to dealing with

him in any other way in which the court has power to deal with him, subject

however to any enactment requiring the offender to be dealt with in a

particular way.

 

 

 
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